Category: intellectual property

Have you ever caught yourself arguing that you can use some content you found on the Web because it is in the “public domain”? Don’t feel silly if you have even though you likely misunderstood what the term “public domain” means as a legal term which is very relevant to content use.

Fountain Square in Downtown Cincinnati Is a Public Square That Works for the City and Its People in a Myriad of Ways: Sale of Donated Books for Benefit of Cincinnati and Hamilton Public Library 06/1973

Have you ever caught yourself arguing that you can use some content you found on the Web because it is in the “public domain”? Don’t feel silly if you have even though you likely misunderstood what the term “public domain” means as a legal term which is very relevant to content use. Before I explain what “public domain” means, you first need a copyright refresher.

Copyright in a nutshell

Copyright is essentially a bundle of exclusive rights a copyright owner has in content. A copyright owner’s exclusive rights usually include –

reproducing the content;

selling the content;

publishing previously unpublished content;

transmitting content; and

creating adaptations of content.

As a general rule, someone who doesn’t have the copyright owner’s permission can’t exercise those rights. There are exceptions to copyright infringement and one of the better known set of exceptions is known as “fair dealing” in South African law. Aside from that, you need the copyright owner’s permission to use her content. One way you can obtain permission is through a license which is basically a set of permissions.

If you’d like to dive into South African copyright law and many of its challenges, the 2008 Open Copyright Review is a good place to start (I made a small contribution). The Open Copyright Review introduces copyright law slightly differently and with a useful perspective:

Copyright is a right created by the Copyright Act, to give exclusive rights to an intellectual creation. Because it excludes people from certain uses, the rights are referred to as exclusive rights. Copyright is a statutory incentive scheme. Copyright law gives exclusive rights, usually to the creator of an intellectual creation, so that she can allow others to make copies or modifications of the intellectual creation in exchange for money or some other benefit. The primary benefit conferred by a property right is the use and enjoyment of the property such as a car, rather than the ability to exclude others, although it might necessitate the exclusion of others only in order to secure use and enjoyment of the car. However intellectual property rights consist solely of the right to exclude others.

Copyright protects “works” and different works enjoy protection for different time periods. Copyright term in South Africa is usually 50 years which runs from different dates depending on the nature of the work. For example, copyright in a book operates for the author’s life and for about 50 years after the author’s death. Other countries may have different copyright terms and this can be both troubling and controversial. The United States has extended copyright protection terms so much that very few works are actually falling into the public domain (a tease). This is problematic. Copyright is not intended to protect works forever but is rather supposed to be used to protect innovation and creativity for a limited time period after which time they are to be surrendered to the broader Commons for everyone’s benefit. Unfortunately copyright protection has been corrupted by content owners but that is another discussion entirely.

Public domain

When a work reaches the end of its copyright protection, it loses that protection and falls into the public domain. The Creative Commons wiki has a nice explanation of what the “public domain” is and how it works:

When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way.

The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

What “public domain” means is that the work’s copyright protection term has expired and the copyright owner’s rights have similarly expired. The work is then freely available for anyone to use in any way. This is different to content licensed under open licenses like Creative Commons licenses (this came up recently in the Woolworths hummingbird controversy) where those works still enjoy copyright protection but the copyright owner has chosen to grant fairly broad licenses permitting other people to use the works in different ways.

If you have found content online, the odds are that the content is not in the public domain, even if it is publicly accessible. You still have to check whether it is licensed for your intended use. The general rule is that if you don’t see any indication of how content is licensed, you have to assume the copyright owner has reserved all of her exclusive rights for herself and your ability to use that content is limited.

Fortunately search engines generally have options to search for content that is available under more permissive licenses in advanced search. Here are Google’s search options, for example:

Another terrific resource for images is Flickr Commons which is a growing collection of images which are in the public domain and have been made available to Flickr for its users’ benefit.

South Africans continue to be frustrated by the paucity of legitimate and convenient TV and movie download or streaming options. At the moment DSTV and a limited South African iTunes store are the primary options. Unfortunately this doesn’t seem to be enough so more and more consumers are looking to popular video rental service, Netflix, for their entertainment needs. The problem is that Netflix content isn’t legally available in South Africa and its likely for the same reason that the local iTunes store lacks TV and some movie content: licensing restrictions.

South Africans continue to be frustrated by the paucity of legitimate and convenient TV and movie download or streaming options. At the moment DSTV and a limited South African iTunes store are the primary options. Unfortunately this doesn’t seem to be enough so more and more consumers are looking to popular video rental service, Netflix, for their entertainment needs. The problem is that Netflix content isn’t legally available in South Africa and its likely for the same reason that the local iTunes store lacks TV and some movie content: licensing restrictions. Brett Haggard, writing for htxt.africa a week or so ago, pointed this out:

Right now, we’re told by inside sources at the big pay TV service providers on the continent (take a guess who, I mean, there aren’t all that many to choose from) that the digital rights for the popular television series we all crave so badly haven’t been signed, sealed and delivered to any one party as yet. Our sources tell us that, should anyone express any interest in bringing that content to the continent in a digital form, the big pay TV service providers will have the first shot at the action, in effect blocking the attempts of other players to get their hands on vital content licenses.

What this means is that the only legitimate means of obtaining much of the TV content (and probably the movies missing from the South African iTunes store) is through the local pay TV providers. The reason is what appear to be exclusive or pre-emptive content licensing deals the local paid TV providers have struck with the content producers or distributors. In many respects, this is the same issue we faced when the iTunes store was not yet available in South Africa (or, at least, where certain content or channels are not available here) and which I wrote about in my 2009 post titled “Legalities of US iTunes Store vouchers in South Africa“:

What does this mean? Well, the license granted to users is the set of permissions that give users the lawful right to consume that content. This is primarily a copyright issue. The content available in the store is owned by 3rd party content creators, publishers and other rights holders. They own the content and, through a license, grant users the right to consume the content.

So, for example, a music company owns the rights to an album that is available for sale in the iTunes Store. This means it likely owns copyright in that album and the bundle of rights that give it the exclusive rights to do various things with the content. In the absence of a license from the music company, you may not do much with the music. The license contained in the iTunes terms of service grants you permission to buy the album and consume it. In this case the license comes from Apple which was, in turn, licensed by the music company to sell the album to you under the license in Apple’s terms of service. It is a little complicated but the bottom line here is that the license in the iTunes terms of service is a series of permissions and restrictions. One of those restrictions is the geographical limitation of the iTunes Store’s availability. What that means is that if you purchase content from the iTunes Store in violation you are doing so in breach of the license and that, in turn, is a breach of copyright and is illegal. It is also a breach of your contract with Apple in the form of the terms of service and Apple could effectively cut your access to the Store and potentially the content you purchased from the Store.

Netflix users face a similar challenge and for similar reasons. The document which governs much of a Netflix user’s service use is the Netflix Terms of Use which begins with the following:

Welcome to Netflix! We are a subscription service that provides our members with access to motion pictures, television and other audio-visual entertainment (“movies & TV shows”) streamed over the Internet to certain Internet-connected TV’s, computers and other devices (“Netflix ready devices”).

These Terms of Use govern your use of our service. As used in these Terms of Use, “Netflix service,” “our service” or “the service” means the service provided by Netflix for discovering and watching movies & TV shows, including all features and functionalities, website, and user interfaces, as well as all content and software associated with our service.

These Terms of Use cover a broad range of issues relating to your service use but if you skip to about halfway down, to section 6 titled “Netflix Service”, you will read these key clauses (parts c, e and f, respectively – I have highlighted the key sections):

You may view a movie or TV show through the Netflix service only in geographic locations where we offer our service and have licensed such movie or TV show. The content that may be available to watch will vary by geographic location. Netflix will use technologies to verify your geographic location. YOU MAY WATCH ON UP TO SIX UNIQUE AUTHORIZED NETFLIX READY DEVICES AND THE NUMBER OF DEVICES ON WHICH YOU MAY SIMULTANEOUSLY WATCH IS LIMITED. Go to the change plan information in the “Your Account” page to see the number of devices on which you may simultaneously watch. The number of devices available for use and the simultaneous streams may change from time to time at our discretion without notice.

…

You agree to use the Netflix service, including all features and functionalities associated therewith, in accordance with all applicable laws, rules and regulations, including public performance limitations or other restrictions on use of the service or content therein. You agree not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use (except as explicitly authorized in these Terms of Use) content and information contained on or obtained from or through the Netflix service without express written permission from Netflix or its licensors. You also agree not to: circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the Netflix service; use any robot, spider, scraper or other automated means to access the Netflix service; decompile, reverse engineer or disassemble any software or other products or processes accessible through the Netflix service; insert any code or product or manipulate the content of the Netflix service in any way; or, use any data mining, data gathering or extraction method. In addition, you agree not to upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Netflix service, including any software viruses or any other computer code, files or programs.

The availability of movies & TV shows to watch will change from time to time, and from country to country. The quality of the display of the streaming movies & TV shows may vary from computer to computer, and device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges. Netflix makes no representations or warranties about the quality of your watching experience on your display. The time it takes to begin watching a movie or TV show will vary based on a number of factors, including your location, available bandwidth at the time, the movie or TV show you have selected and the configuration of your Netflix ready device.

In other words:

Content availability is limited by geography (almost certainly because of the sorts of licensing deals Haggard alluded to in his htxt.africa article);

Netflix will use verification technologies to confirm you are in the country you say you are in (this is to help Netflix ensure it complies with its licensing obligations to its content providers);

You agree not to circumvent measures Netflix puts in place to limit access to its service or to make use of the content other than as permitted by these Terms of Use;

As we have seen with the local iTunes store, the range of content that is available in different regions will vary from country to country.

As with iTunes, there are ways to circumvent Netflix’s technologically-enforced geographical restrictions but having the capability to access Netflix’s content doesn’t equate to permission to access it. If you lack permission to access the Netflix content you lack a license to access that content and unlicensed or unauthorised access to the Netflix content is copyright infringement. In legal terms, this is tantamount to torrenting the content. The main difference is that consumers who go to the lengths of spoofing their locations to sign up to use Netflix are, at least, paying for the content. That should count for something but it doesn’t change the legalities of not complying with Netflix’s Terms of Use.

<

p>If you are accessing Netflix from South Africa, you are infringing copyright and likely to be branded a “pirate”. At least you’re paying.

One of the concerns about Woolworths’ hummingbird scatter cushions is that the retailer used text from a Wikipedia article about hummingbirds as a background to the hummingbird image which attracted most of the attention in the controversy which raged over the weekend.

One of the concerns about Woolworths’ hummingbird scatter cushions is that the retailer used text from a Wikipedia article about hummingbirds as a background to the hummingbird image which attracted most of the attention in the controversy which raged over the weekend. As I pointed out in yesterday’s post –

As Mr Scott pointed out, this leaves the issue of Woolworths’ use of Wikipedia’s text without complying with the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported license which governs Wikipedia content use. This license requires Woolworths to do a few things in order to comply with the license which include –

correctly attributing the Wikipedia article the text was drawn from; and, more significantly,

licensing the Woolworths design “under the same, similar or a compatible license”.

Woolworths spoke to its lawyer and tweeted the following in response to a query from @WikiAfrica:

@wikiafrica We've checked with our lawyer; Wikipedia does not own the content.

Unfortunately the lawyer Woolworths spoke to missed the real issue. This isn’t about Wikipedia owning the Woolworths design. Wikipedia doesn’t even claim ownership of the content on its site, it is all about licensing the content and complying with the relevant Creative Commons license conditions. In this case, we’re talking about the Creative Commons Attribution-ShareAlike 3.0 Unported license.

I wrote about a terrific guide to Creative Commons licenses which Ars Technica published a couple years ago and, instead of repeating what they have already written, take a look at the guide instead. The guide is titled “Creative Commons images and you: a quick guide for image users“. The key license element is the ShareAlike license element which Ars describes as follows:

The “Share Alike” attribute is intended to mimic the function of the GNU Public Licence’s “copyleft” provision, and it stipulates that anyone who creates a derivative work has to license that work under the same Creative Commons license that you used for your original work.

Because this particular clause matters only to those who plan to make new, derivative works based on Creative Commons-licensed content, it’s generally not that important for publishers, advertisers, and most end-users.

What this means is that the Woolies design, as a derivative of the Wikipedia article because it incorporates the text (the license uses the term “Adaptation” which is basically a work based on another work covered by the license), has to be licensed under the same license (I originally read a description of the license as permitting a similar license but the CC version of the overview specifies the same license). To comply with the Creative Commons Attribution-ShareAlike 3.0 Unported license attaching to the Wikipedia source text, Woolworths will have to license its design under the same license. It would also have to attribute the source of the text which is easy enough to do (the Ars guide has a great description of this process too although implementing that practically may be a little challenging just from a logistical perspective).

Of course licensing the Woolies design under a CC license has its own challenges which depend partly on the source license for other design elements (for example, the hummingbird image) and Woolies’ attitude towards releasing its design into the Commons for others to use under the license. Other than that, this is a pretty easy issue to fix.

<

p>The big takeaway here is to pay attention to content licensing issues when sourcing material for your products. Sourcing material from Wikipedia is great, just comply with the license requirements. There is a wealth of Creative Commons licensed content out there which is terrific. Using that stuff requires a different mindset to the usual content licensing approach but the opportunities are inspiring.

The allegation that Euodia Roets is a hypocrite for misappropriating RW Scott’s photograph as the basis for the sketch she contends Woolworths, in turn, misappropriated ignores a few important issues. First, was Ms Roets’ sketch actually an infringement of RW Scott’s photograph? Secondly, Woolworths’ failure to comply with the Creative Commons license Wikipedia applies to its content could have profound implications for Woolworths. Lastly, this debate highlights a remarkable degree of ignorance of the law in the digital marketing and creative industries.

The hypocrisy allegation misses the bigger point. It assumes a degree of knowledge on Ms Roets’ part that, by apparently relying on RW Scott’s photograph as the inspiration for her sketch, she was infringing his copyright in his work. As I pointed out in my previous post, to the extent Ms Roets lacked permission to create a derivative of RW Scott’s work, her sketch (which is likely still protected by copyright) probably infringes RW Scott’s copyright. RW Scott’s son, Greg Scott, commented on htxt’s blog post about this story:

My dad, R. W. Scott was the photographer of the original image. He gave me the rights to the digital image. years ago, around 1990, perhaps. I scanned his slide, edited out an overly complex background, and posted it on GregScott.Com and have given rights to use the photo for reference to many artists, provided they they don’t sell a “direct copy”, that is, that they should make creative interpretations of the image. From my perspective, I’m assuming that both works of art are licensed derivative works,and that Woolworth’s has compared two similar images and chosen one work over the other. Clearly two works derived from the same image can be legitimate, and yet have a strong resemblance.

I don’t see any wrongdoing here, except perhaps for making unwarranted accusations without adequate facts. It does bother me that people seem to assume that big business (Woolworths) is in the wrong, when they bought and paid for the image from the artist. If there are license/copyright issues here, I only see a potential concern with the Wiki text.

This would seem to address the allegation that Ms Roets’ infringed RW Scott’s copyright by creating her derivative work, namely her sketch, and undermines the allegation that Ms Roets is a hypocrite.

The Wikipedia License Issue

As Mr Scott pointed out, this leaves the issue of Woolworths’ use of Wikipedia’s text without complying with the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported license which governs Wikipedia content use. This license requires Woolworths to do a few things in order to comply with the license which include –

correctly attributing the Wikipedia article the text was drawn from; and, more significantly,

licensing the Woolworths design "under the same, similar or a compatible license”.

This would be a pretty interesting development because it would take Woolworths’ commercial design and release it into the Commons for re-use in ways I am sure Woolworths did not anticipate. It will be interesting to see whether this product remains on the shelf or is withdrawn to guard against this occurring and to remedy Woolworths’ failure to comply with the license terms.

Ignorance

As I mentioned above, the hypocrisy allegation implies knowledge of wrongdoing on your part while complaining about being wronged. I believe a more appropriate term may be “ignorance”[1] which is remarkably common and which has emerged fairly strongly in commentary about the story. The underlying issue here is that most people are ignorant of the legal risks they face, particularly creatives, and what the law actually says. In fairness, the law is complex and evolving. That said, there is a lot of poor quality information being disseminated as authoritative and is being relied upon to make bad decisions about content and a range of other issues.

I’ve noticed a high degree of ignorance of basic legal risks at larger agencies and smaller creative studios alike. I took a look at about half a dozen large and medium-sized agencies and only one had a set of terms and conditions and a privacy policy framework. The rest have a simple and redundant copyright notice with no further provisions dealing with data protection, content licensing, liability or a range of other themes a decent legal framework is designed to address. This is likely due more to ignorance of the risks these agencies face and what is required to reduce the likelihood of those risks manifesting than a conscious decision to leave the businesses exposed to unnecessary risk.

Given that larger agencies and studios leave themselves exposed to these risks, it is not surprising that small agencies and freelancers are similarly ignorant of the risks they face, especially considering their budgetary constraints which tend to focus their attention on growing their businesses rather than delving into important, though expensive, legal frameworks.

As the saying goes, ignorance of the law is no defence although, in practice, not having many instances of agencies and design studios being sued for rights infringements which could be avoided with adequate legal frameworks leads the industry to complacency. Essentially, agency management doesn’t see the value in appropriate legal frameworks because none of the other agencies have been sued yet. Call it an ostrich strategy or a diabetic strategy, it is troubling and it is going to lead an unfortunate agency to disaster one day.

Returning to this story, perhaps Ms Roets’ critics should consider how prevalent ignorance of the law is in this industry and how many of them have taken the time to acquaint themselves with the facts and accurate representations of the law which governs their activities? It is practically an epidemic.

I haven’t communicated with Ms Roets and don’t have any specific insight into her awareness of the copyright issues at all. ↩

I thought I’d explore some of the legal themes that have emerged from this #HummingbirdGate story even though the story has since developed further and doesn’t seem to be quite what everyone assumed it was in the first place. Two major legal themes are copyright infringement and unlawful competition.

This last weekend has been an interesting one. The Twitter community seems to be convinced that Euodia Roets was ripped off by an unscrupulous Woolworths despite numerous statements and interviews by Woolworths representatives which have denied this and have pointed to a process which was concluded months before entering into discussions with her and which led to the product range Ms Roets contended was derived from her ideas.

What We Have Learned So Far

More information about this controversy has emerged in the last few days. Here are some of the things we have learned:

Woolworths representatives met with Ms Roets in early 2013 and even though Ms Roets gave Woolworths’ representative a sample with her hummingbird image, it probably would not have influenced Woolworths’ production process;

I thought I’d explore some of the legal themes even though the story has since developed further and doesn’t seem to be quite what everyone assumed it was in the first place. The recording below is a summary of the controversy and an outline of what I see as two major legal themes: copyright infringement and unlawful competition.

Before you read further, you should also listen to Jon Robbie’s interview with Woolworths’ CEO this morning:

Copyright Infringement

Many commentators have highlighted the copyright aspect of the controversy. Ms Roets highlights this in her blog post when she compares her drawing and the scatter cushion she came across in Woolworths (I included both images in my previous post). At some point someone pointed out that Ms Roets’ design looks remarkably like a photograph taken by RW Scott in the late 1990s and they are remarkably similar. This is RW Scott’s image titled “Female Ruby Throated Hummingbird”:

It is a beautiful image, as is Ms Roets’ version. If Ms Roets based her image on RW Scott’s image, her image would likely be classified as a derivative work. Assuming Ms Roets’ image is the result of sufficiently creative work on her part, it could also benefit from copyright protection despite the risk of her derivative work also infringing RW Scott’s work. Whether Ms Roets’ hummingbird infringed RW Scott’s copyright would depend on whether she had permission to use it as the basis for her work (assuming she used his work as the inspiration for hers). If she didn’t have permission (bearing in mind she was selling her hummingbird image, she probably can’t take advantage of exemptions to copyright infringement to escape an infringement claim), whoever owns the rights in RW Scott’s work could probably insist that she stop selling hers. Flowing from this, if Ms Roets copied RW Scott’s work without permission and if Woolworths copied her work without ensuring it had permission, then both Ms Roets’ and Woolworths’ works would infringe RW Scott’s. Again, making a number of assumptions here.

Interestingly, Woolworths said, in its statement, that it commissioned its version of the hummingbird from an artist in Durban in 2012. If that artist derived his or her work from RW Scott’s photograph and did so without permission, that would place Woolworths in a difficult position[1].

Unlawful Competition

Much of the commentary conflated copyright infringement with what people seemed most upset with: an unlawful competition angle. If Woolworths stole Ms Roets’ idea, that would probably fall under a class of unlawful competition referred to as a misappropriation of a competitor’s performance. In this case that could be the case if Woolworths used Ms Roets’ idea for a cushion bearing her hummingbird design. Given that she was selling her cushion and Woolworths intended selling its version, she would clearly be a competitor (even if not a particularly threatening one) and if Woolworths hadn’t come up with its own idea independently, using her idea to subsequently produce its own range could be a form of unlawful competition.

For this to apply, Woolworths would essentially have had to have copied the product of Ms Roets’ efforts without much additional effort of its own. For various reasons this doesn’t seem to have occurred but it is certainly an interesting, if hypothetical, aspect of this controversy.

Important Take-away

Something Woolworths’ representatives pointed to which is crucial (and will be increasingly important as more collaborative business models evolve) was how it documented every step of its production process and can point to specific dates and phases of its process of sourcing, developing and ultimately taking the idea to production. This sort of pedantic and legally motivated process isn’t very exciting and can slow a creative process down but it is in times like these that you would be very happy you took your lawyer’s advice to so this. I suspect the member of Woolworths’ legal team who insisted on this documentation process is the object of much gratitude and appreciation right now.

This is why it is essential to include warranties and indemnities about copyright ownership in contracts with external providers. Those sorts of clauses are basically guarantees by the providers that they have sufficient rights to pass along to their client and will take responsibility if the client is later sued for copyright infringement. ↩

One day, not too long ago, a young artist named Euodia was invited to contribute some of her work to a product range a local merchant called Woolworth was putting together. The two met frequently and Euodia was pretty excited about the prospect of her work being added to Woolworth’s inventory, he was well regarded in the area and all the local farmers saved for months to buy his goods.

One day, not too long ago, a young artist named Euodia was invited to contribute some of her work to a product range a local merchant called Woolworth was putting together[1]. The two met frequently and Euodia was pretty excited about the prospect of her work being added to Woolworth’s inventory, he was well regarded in the area and all the local farmers saved for months to buy his goods.

Euodia shared many of her ideas and artworks with Woolworth including a painting of a hummingbird she was selling in her store. One of the ideas they discussed was a pillow with her hummingbird printed on it. That would surely be a treat!

Sadly, Woolworth decided against continuing with Euodia and he sent her a note a few months later letting her know. She was disappointed and went on her way. A short while later, she happened to come across a store selling Woolworth’s goods and noticed a pillow with a hummingbird on it that looked remarkably like hers. She was shocked! The pillow size looked about the same as the one she discussed with Woolworth and he even seemed to take words about hummingbirds from the legendary Book of Wiki and used it as a background on the pillow and there was no mention of his source at all[2]. Shameful!

She has heard stories about Woolworth doing something like this to other artisans in the land, including a young fellow called Frankie who came up with an idea for some old-style cool drinks which some locals seem to favour. She was horrified to discover that she seemed to be next in line. She felt compelled to share her story and published her sad tale in her newsletter. Soon, it seemed even the birds were twittering about it. Everyone was shocked.

When Woolworth heard the story from a number of little birdies, he was dismayed and published a notice of his own. He said he had been talking to another talented artist in a coastal town some time ago about a similar concept and didn’t steal Euodia’s idea. It was all a bit misunderstanding and he had sent many messages to Euodia in an effort to meet with her and sort this whole thing out.

A young writer read a story in a local paper and gave this all some thought. He hadn’t worked with Woolworth before but something about the story and what everyone was saying about Woolworth seemed to miss a possible explanation. He decided to investigate whether Woolworth really did pull the wool over everyone’s eyes or whether something else was afoot.

In the meantime, some intrepid journalists discovered that Euodia’s hummingbird may not have been completely original work either. This just fuelled our young writer’s curiosity so he set off for his local thinking spot under a shady tree and conducted a thought experiment.

Certainly, he thought, Woolworth could be the devious and unprincipled trader many accused him of being and if he had stolen Euodia’s idea like he seemed to have taken Frankie’s, he deserved the scorn he was receiving. In addition, given how closely other traders listen to messages carried by birds, Woolworth would almost certainly discover that a black reputation could have dire consequences for his value on local markets.

Perhaps, he thought further, there was another explanation. He had dabbled in laws and had noticed that most talented and persuasive business people like Woolworth tended not to consult with their lawyers. Their business was dynamic, exciting and full of potential and lawyers just seem to suck the light and colour out of the room when they speak. Perhaps Woolworth didn’t consult with his lawyers in their dungeons when he came up with his plan to work with Euodia.

Or, our young thinker thought, Woolworth did speak to his lawyers and they gave him a deed or some sort for Euodia to sign and which gave him permission to use her art in some form or another? She didn’t mention anything about that but it has been known to happen[3].

Exploring his first hypothesis a little further, our writer found himself wondering whether Woolworth, mindful of the Frankie story (and other similar stories), shouldn’t have adopted a different approach. Imagine Woolworth approached Euodia to contribute to his new artisan range not merely as a muse or supplier but as a creative partner of sorts. The world is a competitive place and you can’t help but hear stories about young creative people like Euodia outdoing established business people like Woolworth. Certainly, Woolworth’s products seem to bear that out. He certainly seemed to believe that Frankie was on to something great when he styled his drinks after Frankie’s. Similarly, Woolworth seemed to draw considerable inspiration from his discussions with Euodia in producing his hummingbird cushions.

Perhaps the problem here is that Woolworth didn’t challenge the usual relationship between traders like himself and young artisans like Euodia and come up with something that could clearly and transparently have benefitted both of them. What if he approached Euodia to publicly collaborate with him to produce the hummingbird product range using her designs[4] in his aptly named “Artisan” range. She would work with him to create wonderful designs for beautiful products and they would share the credit for the work. Woolworth could use his Artisan range to draw attention to the wonderful local talent Euodia and others represent and perhaps even have them sign their designs. The message he would send would be clear: Woolworth appreciates and supports wonderful, creative and, importantly, local talent and perhaps even goes so far as to create a platform for a select few to represent and uplift their communities.

The lawyers, if they are imaginative enough[5], could construct deeds to support this community upliftment initiative and enable Woolworth to go far further than his competitors in sustainably creating products that bring his customers even more joy. Most people know Woolworth is passionate about supporting schools and communities. Wouldn’t this be a remarkable way to do even more to support them and create opportunities for rich and diverse creativity to fuel it all?

Our writer stood up from his shady spot and ambled back to his small office. He smiled to himself at the thought of a progressive Woolworth. Imagine what he could accomplish. The people would be even more inspired to buy his goods because they would know they would be supporting local, amazing and creative talent.

Disclaimer: This is partly fiction and mostly derived from reports about the so-called #HummingGate controversy which erupted online recently about Woolworths’ dealings with Euodia Roets. It is not based on any actual insights into anyone’s or any company’s methodologies and business practices (because I don’t have any actual insights). This is essentially a “what if?” story. ↩

Well, if this was the case, what Woolworth could do with Euodia’s work would depend very much on the wording of that document and he could have the right to do what he did after all, assuming he did what he stands accused of doing. ↩

Of course this assumes that the hummingbird in question was, in fact her design, and she didn’t draw direct inspiration from another artist. That would complicate matters considerably and our writer could just imagine groups of lawyers rubbing their grubby hands together in glee at the prospect of that. ↩

A big if but there are some pretty innovative lawyers out there these days. ↩

News channel ANN7 has been the object of both considerable ridicule and controversy lately. On the one hand, the 24 hour news channel launched by the similarly controversial Gupta family has been criticised for poor production values and content and, on the other hand, an Indian company known as Aiplex Software has been filing take down notices with YouTube in an effort to remove a growing number of satirical videos targeting the fledgling station.

Update: I was interviewed on Cape Talk 567 about the copyright infringement aspects of this controversy. Here is the audio from the interview:

News channel ANN7 has been the object of both considerable ridicule and controversy lately. On the one hand, the 24 hour news channel launched by the similarly controversial Gupta family has been criticised for poor production values and content and, on the other hand, an Indian company known as Aiplex Software has been filing take down notices with YouTube in an effort to remove a growing number of satirical videos targeting the fledgling station.

In the meantime, ANN7 has become the latest victim of the Streisand Effect and the storm Aiplex Software has kicked up has probably exacerbated the situation for ANN7 considerably instead of what it likely expected, namely, suppressing the criticism.

#ANN7: a lesson in how to draw even more bad publicity – ban your bloopers and inspire an underground reaction as they are posted everywhere

What Aiplex Software seems to have done is lodge take down notices with YouTube under the US Digital Millennium Copyright Act. YouTube is practically required to remove the offending content if it wishes to benefit from a liability shield extended by the DMCA (unless it takes the view the take down notice has no basis and YouTube resists it). Given the volume of content published to YouTube, the take down process was probably automated although it remains open to the users who published the videos to file counter take down notices calling on YouTube to reinstate the videos. I understand from one report that one user has done just this.

The basis for the take down notices is that the offending videos have infringed ANN7’s copyright in its materials (the videos largely include footage from ANN7). The South African Copyright Act (which likely doesn’t apply directly but may be useful comparatively) recognises copyright in what it defines as cinematographic films but also includes specific exceptions for some content uses. The section of the Act that introduces this idea is section 12 which refers to grounds on which content may be used and where those uses will not infringe copyright. Section 16 of the Copyright Act deals with exceptions to copyright infringement specifically relating to cinematographic films and includes these two exceptions:

for the purposes of criticism or review of that work or of another work; and

for the purpose of reporting current events―

in a newspaper, magazine or similar periodical; or

by means of broadcasting or in a cinematograph film

This is subject to the proviso that, in the case of the first exception and the first part of the second exception (dealing with “newspaper, magazine or similar periodical”), “the source shall be mentioned, as well as the name of the author if it appears on the work”. Without going much further in the Act, it allows for critical reproductions of the footage provided there is proper attribution required by the proviso or, where the footage is being reproduced for the purposes of reporting on the story, there must be proper attribution in a “newspaper, magazine or similar periodical”.

Bearing in mind that the proviso requires attribution of the source of the footage and the author’s name “if it appears on the work”, including footage which clearly originates from ANN7 may be sufficient to invoke the exception to copyright infringement on the basis of criticism or a review of the footage where the author’s name doesn’t appear in the footage.

American copyright law has a broad set of copyright infringement exceptions known, collectively, as “fair use” which include exceptions based on criticism. It also includes protections for parody which may also apply to videos targeted for removal by Aiplex Software. The end result is that these videos may well be reinstated once users’ counter take down notices are reviewed.

In the meantime, Aiplex Software’s campaign to remove these videos and target other critical materials is only heightening public interest in ANN7’s content and quality and, quite possibly, attracting even more attention that it would have had otherwise. This is the hallmark of the Streisand Effect and the phenomenon doesn’t draw a distinction between legitimate efforts to protect rights and less legitimate efforts.

Of course there has been considerable attention and debate on Twitter and one question I have been asked is whether Aiplex Software could target Twitter users for criticising ANN7 or the increasing number of parody accounts. Unfortunately, Aiplex Software may not find Twitter to be very accommodating. Twitter’s various policies include a fairly clear Parody, commentary and fan account policy which could well protect parody profiles:

If an account is engaged in parody and follows all of the above recommendations, it will generally be free to continue in its parody so long as it doesn’t mislead or deceive others. These are considered best practices for clearly marking accounts as one that is engaging in non-impersonation parody/commentary.

<

p>Twitter has a pretty robust approach to free expression and Aiplex Software may not be too well received. Any potential prejudice caused by copyright infringement will almost certainly be dwarfed by the reputational harm magnified by the Streisand Effect thanks, to a large degree, to the campaign to suppress criticism and ridicule. It’s not clear that Aiplex Software has a valid basis to require these videos to be taken offline and that doesn’t really matter. What does matter is that members of the public are fascinated with this story and they are sharing their opinions widely and rapidly.

This talk by Andy Baio presents a realistic and sobering perspective on modern copyright disputes. As he points out, being on the right side of the law may not be enough when you are faced with high legal fees and better funded opponents.